CITY OF MORENO VALLEY MUNICIPAL LAW GUIDEBOOK

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1 CITY OF MORENO VALLEY MUNICIPAL LAW GUIDEBOOK Robert L. Hansen City Attorney City of Moreno Valley June 2010

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3 INTRODUCTION This Municipal Law Guidebook ( Guidebook ) is intended to provide an overview of some of the basic laws and legal procedures affecting the City of Moreno Valley. In many cases, the law leaves each city free to establish policies and practices distinctive to their communities. Where relevant and helpful, the Guidebook will attempt to identify Moreno Valley s specific policies and practices. The Guidebook serves as an introduction to municipal law and reference resource for City Officials and employees. We hope that it will provide a basic understanding of the legal issues facing Cities in their day-to-day operations, while assisting officials and employees to know when to turn to the City Attorney s Office for legal analysis and advice. This Guidebook is meant only as a broad and general overview of laws and procedures. The Laws affecting the City are many and complex. Their correct application requires both professional legal analysis and a thorough and accurate understanding of the facts in each set of circumstances. Therefore, this Guidebook is not intended to replace legal advice based on the facts of particular circumstances. Rather, it is intended to familiarize City Officials and employees with basic legal guidelines and help them to recognize important legal issues that might affect the City and to determine when to seek legal advice from our office. This is particularly true in the area of conflicts of interest. While there are basic rules all officials must be aware of, most decisions in the conflict of interest area must be made on a case by case basis. It is important to note that newly elected officials are affected by some of these laws even before they take office. For example, newly elected officials who have not yet assumed office are subject to the open meeting requirements of the Brown Act. A meeting of any combination of newly elected and sitting Council members totaling a majority of the future Council where any matter under the Council s authority is discussed is illegal and can result in prosecution of the participants. Similarly, restrictions on gifts and income received within twelve months of a decision apply to Council members-elect. As discussed in Section 4 of this Guidebook, income and gifts received twelve months prior to an elected official s consideration of a matter may require disclosure and disqualification. It is our hope that this Guidebook will be a valuable basic resource as you carry out your duties and responsibilities on behalf of the City of Moreno Valley. We encourage you to contact the City Attorney s Office for any questions you may have. iii

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5 TABLE OF CONTENTS INTRODUCTION... III SECTION 1 ADMINISTRATION OF CITY GOVERNMENT GENERAL LAW CITY COUNCIL-MANAGER FORM OF GOVERNMENT POWERS OF THE CITY POWERS AND DUTIES OF CITY COUNCIL POWERS AND DUTIES OF MAYOR... 3 LIMITATIONS ON POWERS AND DUTIES OF COUNCIL AND MAYOR... 3 POWERS AND DUTIES OF CITY MANAGER LIMITATIONS ON POWERS AND DUTIES OF CITY MANAGER POWERS AND DUTIES OF THE CITY ATTORNEY Professional Ethics Attorney-Client Privilege Powers and Duties LIMITATIONS ON POWERS AND DUTIES OF CITY ATTORNEY POWERS AND DUTIES OF THE CITY CLERK LIMITATIONS ON POWERS AND DUTIES OF CITY CLERK CITY COUNCIL MEETINGS CITY-RELATED ENTITIES NON-CITY-RELATED ENTITIES SECTION 2 PUBLIC MEETINGS AND THE BROWN ACT WHO DOES THE BROWN ACT APPLY TO? WHAT IS A "MEETING" AND "ACTION TAKEN? TYPES OF MEETINGS Regular Meetings Special Meetings Emergency and Dire Emergency Meetings NO ACTION OR DISCUSSION OF NON-AGENDA ITEMS CLOSED SESSIONS Litigation Threats to Public Property; Security Threats Personnel Conference with Labor Negotiator Real Estate Negotiations License Applications BROWN ACT VIOLATIONS SECTION 3 PUBLIC RECORDS AND INFORMATION WHAT IS A PUBLIC RECORD? PUBLIC POLICY FAVORS DISCLOSURE RESPONDING TO PRA REQUESTS RECORDS IN ELECTRONIC FORMAT PUBLIC RECORDS ACT VIOLATIONS SECTION 4 CONFLICT OF INTEREST ISSUES COMMON LAW DOCTRINE POLITICAL REFORM ACT Disclosure of Economic Interests Disqualification of Public Officials from Participating in Governmental Decisions Campaign Regulations v

6 Mass Mailings Fair Political Practices Commission Civil and Criminal Enforcement INTERESTS IN CONTRACTS (GOV T CODE 1090) PASSES OR DISCOUNTS FROM TRANSPORTATION COMPANIES; FORFEITURE OF OFFICE INTERESTS IN PROPERTY WITHIN REDEVELOPMENT PROJECT AREAS SECTION 5 COMPENSATION, REIMBURSEMENT OF EXPENSES FOR ELECTIVE OFFICERS, AND USE OF PUBLIC FUNDS COMPENSATION OF ELECTIVE OFFICES REIMBURSEMENT FOR EXPENSES USE OF PUBLIC FUNDS MASS MAILINGS AT PUBLIC EXPENSE MISUSE OF PUBLIC FUNDS SECTION 6 LIABILITY OF CITY OFFICIALS FOR CIVIL RIGHTS VIOLATIONS GIST OF A CIVIL RIGHTS VIOLATION PERSONAL LIABILITY AND IMMUNITIES OF CITY OFFICIALS FOR CIVIL RIGHTS VIOLATIONS ACTS WHICH MIGHT RESULT IN A CIVIL RIGHTS VIOLATION Employment Discrimination Pregnancy, Childbirth, and Related Medical Conditions Sexual Harassment Age Discrimination Disability Discrimination National Origin and Citizenship Protected Speech Land use decisions and actions affecting private land Improper Pre-condemnation Behavior City Actions Impermissibly Seeking To Regulate Conduct Enforcement Of Permissible Ordinances In An Impermissible Manner Illegal Search and Seizure Failure To (Adequately) Train Failure To (Adequately) Supervise Failure To Intervene Or Prevent An Act (Inaction) Federal Fair Housing Act Access To Facilities And Services First Amendment Access To Public Facilities THE CONSEQUENCES TO AN OFFICIAL OR A CITY OF BEING FOUND LIABLE FOR A CIVIL RIGHTS VIOLATION SECTION 7 PROCUREMENT AND PUBLIC WORKS CONTRACTS COMPETITIVE PROCUREMENT Purchase of Goods Public Works Contracts QUALIFICATIONS-BASED PROCUREMENT EXECUTION OF CONTRACTS; PERSONS AUTHORIZED; LIMITATIONS REDEVELOPMENT AGENCY CONTRACTS SECTION 8 CODE ENFORCEMENT CODE ENFORCEMENT AUTHORITY ROLE OF THE CITY ATTORNEY PROSECUTORIAL DISCRETION TYPES OF CODE ENFORCEMENT CASES State Laws vi

7 Property Maintenance Buildings and Structures Public Works/Land Development Planning/Zoning Fire Animal Control Police Business License INVESTIGATIONS Initial Complaint Identification of Responsible Persons Searches and Inspection Warrants Strict Liability Notice of Violation Stop Work Order Officer Notes and Report City Attorney Referral Public Records Act CODE ENFORCEMENT ALTERNATIVES Administrative Enforcement Liens Civil Citations Misdemeanor Citations Infraction Citations Abatement Civil Injunction Receivership COST RECOVERY SECTION 9 REDEVELOPMENT AGENCY LAW AGENCY INCOME AND FINANCING (DEBT) Tax Increment Assessment Or Community Facilities Districts Bond financing Other GENERAL POWERS OF A REDEVELOPMENT AGENCY Redevelopment Agency Is A State Agency Powers Project Areas THE CITY OF MORENO VALLEY REDEVELOPMENT AGENCY City Council Is Governing Board Separate Budget ADOPTING REDEVELOPMENT PLANS Redevelopment Plan Adoption Stakeholder Participation Public Hearing Process IMPLEMENTING THE REDEVELOPMENT PLAN Owner/Tenant Participation Property Acquisition Relocation Replacement Housing Plan Property Disposition Public Improvements And Other Assistance SECTION 10 LAND USE LAW AND ENVIRONMENTAL REVIEW vii

8 INTRODUCTION CONSTITUTIONAL LIMITATIONS United States Constitution California Constitution STATUTORY LAW Statutory Preemption Federal Laws State Laws Local Ordinances And Policies CEQA AND ENVIRONMENTAL REVIEW Finding of Exemption Negative Declaration Mitigated Negative Declaration Environmental Impact Report Independent Judgment Test ANNEXATION OF LAND STATE PLANNING ACT General Plan Specific Plans Zoning Ordinances Other Land Use Decisions SUBDIVISION MAP ACT Map Required for All Subdivisions Subdivision Review Process LAND USE PROCESS, GENERALLY Rules Governing Hearing Processes Constitutional Due Process Required Votes and Tie Votes Types of Land Use Decisions Required denials and approvals TAKINGS AND EXACTIONS (PROJECT CONDITIONS AND FEES) Takings Land Use Exactions (Project Conditions and Fees) SECTION 11 LABOR RELATIONS DUTIES OF THE CITY IN EMPLOYEE RELATIONS IMPASSE PROCEDURES MEMORANDUM OF UNDERSTANDING SECTION 12 GLOSSARY OF MUNICIPAL LAW TERMS SECTION 13 LIST OF EXHIBITS A NEWSPAPER ARTICLES RE TICKET FIXING B CITY COUNCIL RULES AND PROCEDURES C CAN I VOTE? CONFLICTS OF INTEREST OVERVIEW PREPARED BY THE FPPC D LIMITATIONS AND RESTRICTIONS ON GIFTS, HONORARIA, TRAVEL AND LOANS PREPARED BY THE FPPC viii

9 SECTION 1 ADMINISTRATION OF CITY GOVERNMENT GENERAL LAW CITY Moreno Valley is a general law city. General law cities derive their legal power and authority from state laws enacted by the legislature, primarily in the California Government Code. State law also establishes the organizational structure of general law cities. The Council also promulgates laws by ordinances codified in the Moreno Valley Municipal Code and by resolution. However, in a general law city, local laws and ordinances may only exercise those powers granted by the State Legislature in state statutes and may not enact ordinances where the state has pre-empted or superseded local authority. COUNCIL-MANAGER FORM OF GOVERNMENT The powers of City government are vested by Government in the city council as a body, the city clerk, the city treasurer, police chief and fire chief. Most cities throughout the state have adopted the council-manager form of government. Pursuant to Government Code sections et seq. the voters of the City of Moreno Valley established the council-manager form of city government at the time of incorporation. The Council-Manager form of government may not be changed without voter approval. In general, under the Council-Manager form of government, the City Council establishes policies and the City Manager has the power to administer the day-to-day affairs of the city, hire and fire city employees and manage the programs, facilities and properties of the City. The City Council appoints the City Manager and holds him or her accountable for job performance in administering the city organization and implementing the Council-established policies. The City Council also appoints the City Attorney, and the City Clerk. These appointed officers serve at the pleasure of the City Council. While the Council has the authority to hire and fire these officers at will, generally a negotiated, written agreement governs the employment relationship and determines compensation, benefits, and performance review and termination procedures. The City Council may also choose to appoint, or to allow the City Manager authority to appoint, the City Treasurer, Fire Chief and Police Chief. By historical practice, but not law or formal policy, in Moreno Valley the Finance Director hired by the City Manager has been appointed to be the City Treasurer. The City s contracts with the County of Riverside to provide police and fire services to the City provide for the County to appoint the Police Chief and Fire Chief. Typically, the County consults with the City Manager and City Council with respect to these appointments. The City Council has the authority under the contract to request replacement of a County appointed police or fire chief. POWERS OF THE CITY A general law city has only those powers expressly granted by the constitution or the legislature, and those powers necessary to carry out the expressly granted powers and purposes of the City. In 1

10 the absence of express legislative sanction, a city has no authority to engage in any independent business enterprise or occupation such as is usually pursued by private individuals. The City may, subject to state and federal laws and constitutions: make and enforce within its limits all local police, public safety, sanitary and other ordinances and regulations. regulate the permitted uses of land within its jurisdiction. levy taxes to raise revenue for public purposes. establish, purchase, and operate public works, such as libraries, government buildings, roads, parks, utilities, etc. expend public funds for public purposes. acquire and own land, buildings and other property for public purposes. own, construct and operate public utilities, including, but not limited to, water, sewer, and electricity. [NOTE: Moreno Valley currently operates an electric utility, but does not operate water, sewer or other utilities.] POWERS AND DUTIES OF CITY COUNCIL The powers of the City Council are held by the Council as a body and not by any individual Council member. Other than certain limited and ceremonial powers of the Mayor, members of the Council as individuals have no more power or authority than any other citizen of the City. However, acting as a body, the Council has the following powers: To make all laws involving municipal affairs subject to the state and federal laws and constitutions. To appropriate money, set investment policy, adopt budgets and otherwise direct the financial affairs of the City. To appoint and remove the City Manager, the City Attorney and the City Clerk. To appoint or delegate to the City Manager the authority to appoint, the Treasurer, Fire Chief and Police Chief. As described above, by practice the Finance Director has been appointed City Treasurer and the County appoints the Fire Chief and Police Chief by contract. The Council has authority to remove the City Treasurer and to request removal of the fire and police chiefs. To direct the City s legal business and proceedings. To establish and uniformly apply rules for the conduct of its proceedings To evict any member or other person for disorderly conduct at any of its meetings To require and administer oaths and affirmations in any investigation or proceeding pending before the Council. 2

11 To make or modify policies for the conduct of city business, subject to state and federal law (including policies concerning the approval and execution of warrants, contracts, conveyances and other documents). To appoint boards, commissions and committees to advise them or to exercise delegated powers unless limited by state law. [ Note: The City Attorney s Office recommends that the powers and duties of each body, the method of appointment, and the degree to which testimony or evidence will be permitted at the City Council hearing all be clearly established by the Council in its authorizing act, whether ordinance or resolution.] POWERS AND DUTIES OF MAYOR The Mayor is the official head of the City for all ceremonial purposes and is the presiding officer at all meetings of the City Council. By ordinance, the Mayor may add items to the agenda for Council meetings. By practice, the Mayor has consulted with the City Manager, City Attorney and/or City Clerk in coordinating agendas for City Council meetings. The Mayor may also nominate persons for appointments to Boards and Commissions advisory to the Council, subject to the approval of the Council. The Mayor may excuse appointed officials from attendance at a City Council meetings, upon request. Other than these limited roles, the Mayor has only the same power and authority as any other member of the Council. At Council meetings, the Mayor may make or second any motion and present and discuss any matter as a member of the council and has one vote. LIMITATIONS ON POWERS AND DUTIES OF COUNCIL AND MAYOR Under the Council-Manager form of government, the City Manager, and not the City Council, has the power to administer the day-to-day affairs of the City. The City Manager has the power to hire and fire all city employees (except the City Clerk and the City Attorney and their deputies and the City Treasurer 1 ) and to direct the workforce of the City and operations of City departments, facilities, buildings, etc. City Council members as individuals are not empowered to make administrative decisions or to give directions to City employees. The Council, acting in a legal meeting by majority vote, can direct the City Manager to implement changes in policy and procedure and can hold the City Manager accountable for his or her performance. However, acting individually (or even collectively outside of a legal meeting), Council members have no more legal authority than any other citizen of the City. In fact, Council members can create serious and significant personal civil and criminal liability for themselves by attempting to exercise authority they do not possess. By historical practice, City Managers in Moreno Valley have generally permitted Council members to contact senior staff members (department heads and, in some cases, division 1 The City Manager appoints the Finance Director, who by practice is appointed the City Treasurer. The City Manager may remove the Finance Director and thereby effectively remove the City Treasurer, but the City Council technically appoints and removes the Treasurer. 3

12 managers) with requests for information regarding facts and circumstances and/or timing and status of matters. However, this is at the City Manager s discretion. The City Manager s Office also established a computerized Customer Response Management System (CRM) to facilitate and track Council members (and the public s) requests. However, neither of these allowable communications may be used to circumvent the limitations on Council members authority outlined in this section. Council members, individually, cannot give direction to any level of staff. In particular: Council members may not do anything to interfere with any city employee in carrying out official duties of his or her office or employment. Doing so may subject the Council member to criminal charges of interfering with a public officer under the California Penal Code. If a Council member questions the actions of an employee, his or her questions should be directed to the City Manager, not to the individual employee Council members must refrain from attempting to influence any City inspector, enforcement officer, police officer, prosecuting attorney, hearing officer, judge or jury with respect to any citation or other code or law enforcement proceeding. Such activities are commonly referred to as ticket-fixing. They are an illegal abuse of office and can subject the Council member to both political embarrassment and criminal prosecution for obstruction of justice or interference with a public officer. Council members are frequently approached by members of the community and asked to intervene in a municipal code or other law enforcement proceeding. Council members must refrain from doing so. Even if a Council member believes that the enforcement officer or prosecuting attorney has made a mistake in bringing the enforcement action, the Council member must not attempt to direct a fix. Attached as Exhibit A is a compilation of newspaper stories from around the country where public officials have become involved in ticket fixing. These articles show the significant damage done to personal and political lives by engaging in ticket fixing, and are attached as a resource for public officials to show others when inappropriate requests are made for their intervention. If a Council member knows about or suspects malfeasance, fraud, corruption or other inappropriate activity on the part of a City employee, he or she should report that suspicion and all known facts to the City Manager, City Attorney, Police Chief and/or District Attorney as may be appropriate. The City Attorney can advise on appropriate reporting actions. However, the Council member must not attempt to interfere directly in the enforcement proceeding. Once a report is made, those officially charged with prosecutorial discretion and the hearing officer, judge or jury must be permitted to carry out their responsibility. A Council member may testify at the hearing or trial if he or she is a direct witness of relevant events, but only as a percipient witness (one who actually was present and saw the events first hand), not as an expert to give an opinion on whether or not the 4

13 actions did or should have constituted a violation, nor as a Council Member or representing the Council. This is not to say that the City Council has no role in setting enforcement policy, but their role is to act as a body in a legal meeting adopting general laws, rules and policies, not in intervening in particular cases. If poor performance or inappropriate activities by City employees are an issue, the Council, as a body, may hold the City Manager accountable to correct it. Council members are not authorized to represent to the public, the media, other public agencies or any other person or entity that they speak, write or otherwise communicate on behalf of the City or the City Council unless authorized to do so in that specific matter by majority vote of the City Council at a legal meeting. Council members may communicate on their own behalf, but should avoid giving the impression that they speak for the City or Council without such express authority. Such actions, while normally not criminal, do give rise to confusion and can result in harm to the City s interests. In turn, the Council member may experience political embarrassment, loss of respect and even public censure by the Council. If the representation is made in official government proceedings such as to a judge, jury, or legislative body, they may be criminally punishable. Council members as individuals have no authority to enter into oral or written agreements, contracts or other commitments on behalf of the City or the City Council without express authority by majority vote of the City Council. When a Council member gives assurances of City commitment without such authority, he or she may give rise to accusations of illegal action by themselves or by the City Council (such as a violation of the Brown Act). Further, the City may face and have to expend public funds to defend claims of contractual rights by outside parties. The Mayor and the City Manager are authorized by statute and city ordinance to sign any document approved by the Council, but have no authority to sign any document not so approved unless authority is specifically delegated. The City Council has by ordinance and resolution delegated to the City Manager the authority to sign certain contracts, warrants, etc. in the ordinary course of City business. Any questions in this regard should be directed to the City Attorney. Neither Council members nor the Council as a body, has the authority or right to access confidential personnel files of employees other than their own appointees. These files are confidential by state law and may only be shown to those specifically authorized by law. No Council member (or employee or other person, for that matter) has the legal authority to disclose attorney-client privileged information to any person or entity without the express authority of the City Council as a body. Unauthorized disclosure of such information is a crime in California. In particular, it is a misdemeanor under state law for any person to disclose confidential information from a closed session of the City Council with its attorney to any person not under the attorney-client privilege. 5

14 Any Council member having a question about his or her proper role in a particular matter should contact the City Attorney for legal advice prior to taking any action. POWERS AND DUTIES OF CITY MANAGER Under the Council-Manager form of government, the City Manager has the power to administer the day to day operations of the City. The City Manager has the power to hire most city department heads and employees. The City Manager may discipline, suspend or remove such department heads and employees. The City Clerk and the City Attorney are appointed by the City Council. The Fire Chief and Police Chief are typically appointed by the City Manager, but state law and the Municipal Code permit the City Council to retain authority to make those appointments if they so choose. Deputy Clerks and Attorneys are appointed by the City Clerk and City Attorney respectively. The Fire Marshal is appointed by the Fire Chief. The City Manager is responsible to the City Council for the proper administration of all operations of the City. The Council does not have authority to deal directly with employees under the City Manager s authority except through the City Manager. Under the Council-Manager form of government, the City Manager traditionally has the authority and duty to (among other things): Prepare, submit to City Council, and be responsible for the administration of the budget after its adoption. Prepare and submit to City Council, as of the end of each fiscal year, a comprehensive report on the finances and administrative activities of the City for such fiscal year. Keep the City Council advised of the financial condition and future needs of the City. Hire, fire, manage and direct the City staff in carrying out the decisions of the City Council, managing the City s property, facilities and programs, and enforcing the City s laws and ordinances. Specifically, under of the Municipal Code the City Manager has power and responsibility to: Enforce all laws and ordinances of the city and to see that all franchises, contracts, permits and privileges granted by the city council are faithfully observed; Appoint, remove, promote and demote any and all officers and employees of the city except those who are elected or appointed by the city council, subject to personnel rules and regulations adopted by the city council; Appoint, with the consent of the city council, the planning director; Control, order and give directions to all department heads who are subject to his or her appointment and removal authority, and to subordinate officers and employees of the city under his or her jurisdiction through their department heads; 6

15 Conduct studies and reorganize the city staff in the interest of efficient, effective and economical conduct of the city s business; Recommend to the city council such measures and ordinances as he or she deems necessary; Attend all meetings of the city council unless excused therefrom by the mayor or the city council; Prepare and submit the proposed annual budget and the proposed annual salary plan to the city council for its approval; Direct and supervise all the purchasing activities of the city; Keep the city council at all times fully advised as to the financial condition and needs of the city; Make investigations into the affairs, operations or obligations of the city or its contractors or into complaints concerning the administration of the city government or the service maintained by public utilities in the city; Exercise general supervision over all city buildings, parks and other public properties; Have the same authority as the mayor, as convenience may dictate, to sign warrants, contracts, conveyances and other documents requiring the city seal which have been approved by the city council. Perform such other responsibilities and exercise such other powers as may be delegated to him or her by official action of the city council. LIMITATIONS ON POWERS AND DUTIES OF CITY MANAGER The City Manager is the operational manager of the City, but does not have policy making authority. He or she can provide policy advice and recommendations to the City Council, but the City Council sets the policy. Once the Council has adopted a policy, whether by ordinance, resolution or by motion and vote, the City Manager is obligated to follow that direction provided the policy is both legal and within the City Council s jurisdiction and authority. The Manager is not free to disregard a legitimate City Council policy because he or she disagrees with it or believes it would be unfair to apply in a particular case (unless the policy grants that discretion). The contractual power of the City lies with the City Council. Neither the City Manager nor any other City official or employee has the authority to bind the City to any agreement or obligation of any type unless that authority has been expressly granted by the City Council. Any agreement or obligation purportedly entered into without specific written City Council authority is void and unenforceable against the City. 7

16 City Managers have professional ethical rules and obligations. These rules are voluntarily adopted by various professional organizations, such as the International City/County Management Association ( ICMA ). While not having the force of law, most professional City Managers subscribe to these ethical rules. These rules require City Managers to refrain from being involved in political activities in the City in which they serve. They also provide an ethical duty to hire, fire, promote, discipline and otherwise deal with employees on the basis of competence and merit, to stand for and defend the principles of professional management, to act in the best interests of all the people, free of discrimination and on the basis of principle and justice, among other things. These rules are designed to protect the City Manager s role as an objective professional employed on the basis of expertise and not political affiliations, and to promote honesty and integrity in the profession. POWERS AND DUTIES OF THE CITY ATTORNEY PROFESSIONAL ETHICS The City Attorney is subject to the ethical standards for all California lawyers, which are set forth in the Rules of Professional Conduct of the State Bar of California. Rule governs the ethical obligations of a lawyer who represents an entity rather than a natural person. Under that rule, the City Attorney s client is the City, as embodied in its highest authorized officer, employee, body or constituent 2 overseeing the particular engagement. This means that the City Attorney s duty as a lawyer is to the highest officer or body exercising the City s authority in a particular matter. Generally, this will be the City Council as a body. However, in administrative matters, it would be the City Manager. In some other matters, where a commission or a city employee might have final authority, the City Attorney s client would be that commission or employee, but only for that specific matter in which they exercise that highest authority. Therefore, by legal definition there is no attorney-client relationship between the City Attorney and individual employees or individual Council members, except when acting as that highest authorized officer. ATTORNEY-CLIENT PRIVILEGE Legal advice and analysis provided by the City Attorney is confidential and subject to legal protection under the attorney-client privilege. The attorney-client privilege is held by the City Council as a body, but may sometimes include boards or commissions and officials of the City or individual employees to whom the City legally owes a defense, but only in their official capacities. The City Attorney cannot undertake to represent the individual interests of particular employees or Council members. No Council member, employee or other person has the legal authority to disclose attorney-client privileged information to any person or entity without the express authority of the City Council as a body. Unauthorized disclosure of such information is a crime in California. In particular, it is a misdemeanor under state law for any person to disclose confidential information from a closed session of the City Council with its attorney to any person not under the attorney-client privilege. 2 constituent here means a part of the City organization, not a voter or resident of the City. 8

17 POWERS AND DUTIES Under and of the Municipal Code, the City Attorney has the authority and responsibility to: Retain or employ other attorneys, assistants or special counsel as may be needed to take charge of any litigation or other legal matters or to assist the city attorney. Advise the council and all city officers in all matters of law pertaining to their offices; Furnish legal service at all meetings of the council, except when excused or disabled, and give advice or opinions on the legality of all matters under consideration by the council or by any of the boards and commissions or officers of the city; Prepare and/or approve all ordinances, resolutions, agreements, contracts and other legal instruments as shall be required for the proper conduct of the business of the city and approve the form of all contracts and agreements and bonds given to the city; Prosecute on behalf of the people cases for violation of city ordinances; and Perform such other legal duties as may be required by the council or as may be necessary to complete the performance of the foregoing functions. LIMITATIONS ON POWERS AND DUTIES OF CITY ATTORNEY The City Attorney s role is limited to representing the City government as an entity and represents individuals only to the extent that the City owes a duty of legal representation to employees and officers who have acted in the course and scope of their official duties. The City Attorney does not (and cannot) represent individuals in any other capacity and cannot give legal advice to individuals, companies or other entities. Specifically, some residents of the City have the impression that the City Attorney s Office is a resource for individual residents, citizen s groups, etc. to receive free legal advice or representation in personal and family legal matters, to be advised of their legal rights against City actions or decisions, or to intervene on their behalf with City officials and employees in conflicts with the City. Not only does the City Attorney s Office not provide any such advice or representation, it is legally and ethically precluded from doing so. Individuals needing legal advice or representation for their own benefit should consult a private attorney, not the City Attorney s Office. The City Attorney s Office may from time to time explain to persons its opinions regarding the state of the law on an issue of public concern, but it always represents only the interests of the City as a government entity. In very rare cases, individual attorneys and/or the City Attorney s Office itself may be required to refrain from providing legal advice to the City Council or Commission because 9

18 of a prior involvement in providing advice to City Staff in certain types of prosecutorial or enforcement matters that then come to a public hearing before the Council or Commission. In such circumstances, the City Attorney s Office will publicly advise the hearing body of the issue and either provide a different attorney or recommend that the City retain competent outside counsel. This rule arises in order to protect certain Due Process of Law rights of affected parties. The California State Bar Rules of Professional Conduct apply to the City Attorney. These rules do have, in effect, the force of law since lawyers who violate those rules are subject to discipline by the State Bar, which can include fines, suspensions or even revocation of the license to practice law (disbarment). In addition, most City Attorneys in California voluntarily subscribe to the Ethical Principles for City Attorneys adopted by the City Attorneys Department of the League of California Cities, which do not have the force of law, but which, like the ICMA Code of Ethics for City Managers, provide for City Attorneys to refrain from involvement in local political activity and promote honesty and integrity in the profession. POWERS AND DUTIES OF THE CITY CLERK The City Clerk is the local official for elections, local legislation, the Public Records Act, the Political Reform Act, and the Brown Act. The City Clerk is the legal Custodian of Records for the City. Before and after the City Council takes action, the City Clerk ensures that actions are in compliance with all federal, state and local statutes and regulations and that all actions are properly executed, recorded, and archived. Generally, the Government Code and the Election Code provide the procedures to follow. Under the Municipal Code, the primary duties of the City Clerk are to: Attend all meetings of the city council and be responsible for the recording and maintaining of a record of all the actions of the council; Keep all ordinances and resolutions of the council in such a manner that the information contained therein will be readily accessible and open to the public. The city clerk shall attach to the original copy of each ordinance a certificate which shall state the date the ordinance was adopted and, as to an ordinance requiring publication, that the ordinance has been published or posted in accordance with law; Keep all records of the council and of the office of the city clerk in such manner that the information contained therein will be readily accessible and open to the public until such time as any of the records may be destroyed, or reproduced and the original destroyed, in accordance with state law; Serve as the official custodian of all city records 3 ; 3 While this duty is set forth in the Municipal Code, in practice there are certain records of the City for which the 10

19 Be the custodian of the seal of the city; Prepare the council agendas, in conjunction with and under the direction of the city manager; Perform the duties prescribed by the Elections Code of the state in conducting municipal elections; Perform the duties imposed upon city clerks by the California Political Reform Act; Be responsible for the publication of all the official advertising of the city; Be responsible for the maintenance and distribution of the municipal code; Process all claims filed against the city and its officers, agents, or employees, pursuant to the provisions of Chapter 1 of Part 3 of Division 3.6 of Title 1 of the Government Code of the state and Chapter 3.16 of this code; and Perform such other duties consistent with this code as may be required of the city clerk, by the city council. LIMITATIONS ON POWERS AND DUTIES OF CITY CLERK The City Clerk s powers are strictly defined by law. The City Council may delegate additional duties to the City Clerk, but those duties must not be inconsistent with the City Clerk s statutory duties. The City Clerk generally has no discretion in the performance of statutory duties or exercise of powers, but must strictly follow the law. The City Council, even acting as a body, does not have authority to direct the Clerk in the exercise of any statutory duty. CITY COUNCIL MEETINGS Government Code section requires that the City Council hold regular meetings at least once a month at times fixed by ordinance or resolution. It may adjourn any regular or adjourned meeting to a date specified in the order of adjournment. When so adjourned, the adjourned meeting is a regular meeting for all purposes. In Moreno Valley, the City Council has adopted rules and procedures for its meetings. A copy of those Rules and Procedures is attached to this Guidebook for your convenience as Exhibit B. They provide for regular City Council meetings on the second and fourth Tuesdays of each month, a regular closed session meeting on the first Tuesday and a regular Study Session (where by Council rules general direction to staff may be given, but no formal action is taken and no final policy decisions are made), on the third Tuesday. Clerk cannot act as custodian, either due to the specific nature of the records, such as financial records kept in the Finance Department or plans and specifications for developments and public improvements, kept in the Public Works Department; or because of legal requirements, such as attorney-client privileged documents kept in the City Attorney s Office, or personnel records kept in the Human Resources Department. 11

20 CITY-RELATED ENTITIES The City of Moreno Valley, like all cities, is a municipal corporation. However, due to the intricacies of funding public facilities and services, the City is not the only entity that provides services or facilities to the residents of Moreno Valley. There are several other separate and distinct legal entities that are affiliated with the City that provide specific facilities and/or services to the residents. These entities are legally separate from the City and have their own funding, budget and legal liabilities and obligations. They are normally governed by a Board of Directors comprised of the City Council members. The City Manager is typically the Executive Director or Chief Executive Officer, with the City Clerk as Secretary or Clerk, the City Attorney as General Counsel, and the City Treasurer as Treasurer. These entities include: Community Redevelopment Agency of the City of Moreno Valley implements and governs the redevelopment area plan within the City. Moreno Valley Community Services District owns and operates various public facilities and provides services through various zones, including Zone A Parks, Zones B, C and D street lighting and landscaping, and Zone L Libraries. Moreno Valley Public Facilities Financing Corporation - conduit for certain public financings (bonds, leases and certificates of participation) Moreno Valley Public Financing Authority - conduit for certain public financings (bonds, leases and certificates of participation) Moreno Valley Industrial Development Authority - conduit for certain public financings (bonds, leases and certificates of participation) The City Council also acts as the Board of Library Trustees under state public library laws, and as the Board of Directors of the Moreno Valley Community Foundation, a non-government, tax-exempt non-profit organization organized to raise private money for adding or improving certain community and cultural facilities and programs, and in particular, the projected new public library. In addition, the City has formed and administers a number of assessment districts, community facilities districts and other special districts which build and operate public improvements and facilities benefitting particular areas of the City. These districts are generally financed by assessments or special taxes on the properties that benefit from them. Their funds are strictly limited by law to the purposes for which they are collected and the City has no discretion to use those funds for general City purposes. This Guidebook is not intended to cover the special laws affecting these related entities. However, City officials must take special care to respect the separate legal status of these entities and not commingle funds, services or ownership of properties. The City Attorney s Office is available for legal advice concerning these issues. 12

21 NON-CITY-RELATED ENTITIES There are also governmental and non-governmental entities providing services or facilities to City residents that are not affiliated with or controlled by the City. Neither the City nor the City Council has any control or authority over these entities. Each of these entities has its own Board of Directors, officers and employees. They include, but are not limited to: Moreno Valley Unified School District Rancho Verde Unified School Districts Riverside County Regional Medical Center Riverside County Flood Control District Riverside Transit Agency Riverside Community College District and Moreno Valley College Eastern Municipal Water District Western Municipal Water District Various other public and private water agencies and companies neither the City nor any of its related entities provides water or sewer utility service within the City 13

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23 SECTION 2 PUBLIC MEETINGS AND THE BROWN ACT The Ralph M. Brown Act 4 is commonly referred to as the "Brown Act" and is also known as the "Open Meetings Law." It applies to all local governmental agencies. The basic principles of the Brown Act were incorporated into the California Constitution by voter approval of Proposition 59 in November of The Brown Act is the primary procedural guide for conducting City business. It attempts to strike a balance between the public benefit that results from public access to meetings and public participation in government decisions on the one hand, and, on the other hand, the public benefit that results from government leaders being fully informed and candid in deliberations on sensitive matters where confidentiality protects either the public s best interests or the privacy rights of individuals such as litigation, certain negotiations, and hiring, firing and discipline of employees. Since the basic mission of the Brown Act is to ensure that decisions are made in public wherever reasonable to do so, there are very specific rules on how meetings must be noticed and conducted, on agenda requirements, and on public access at Council meetings. The City Clerk and City Attorney work with the Council to ensure that Brown Act requirements are met. The City Clerk is responsible at the agenda and notice stage and the City Attorney is responsible for guiding the Council at meetings. The Brown Act contains various rules designed to prevent the circumvention of its open meeting requirements. All meetings must be publicly noticed for a specific time and location. All meetings except authorized closed sessions must be open to the public. Any meeting held in violation of Brown Act requirements is illegal. Officials participating in such an illegal meeting may be criminally prosecuted. All actions taken at an illegal meeting can be declared null and void by the Courts. WHO DOES THE BROWN ACT APPLY TO? The Brown Act applies to all legislative bodies of local agencies in California. It applies not only to the City Council, but also to all standing committees of the Council even if they comprise less than a quorum, to advisory boards, commissions, and committees appointed by the Council, and even to certain non-government corporations or entities where City elected officials have Board of Directors representation or other direct legal authority to participate in corporate decision-making by virtue of their elected office.. For the City of Moreno Valley, this includes the Planning Commission, Traffic Safety Advisory Commission, Library Board, Project Area Committee of the Redevelopment Agency, and all other standing boards and commissions of the City or any of its related agencies. It also includes the boards of the City s private Foundation. Throughout this section of the Guidebook, references to the City Council or to any of its members, include all of these other bodies and their members. 4 Gov. Code et seq. 15

24 WHAT IS A "MEETING" AND "ACTION TAKEN? The term "meeting" is very broadly defined in the Brown Act as any congregation or consultation of a majority of the members of the Council to hear, discuss or deliberate upon any matter which comes under the subject matter jurisdiction of the Council, regardless of the location, timing or method of communication. Thus, two Council members discussing City business one on one becomes an illegal serial meeting when either of them discusses the same matter with a third member of the Council, whether in person, on the phone, by , through an intermediary or otherwise. A quorum of newly elected but not yet seated Council members may not discuss City business together outside a properly noticed and agendized public meeting, nor may one or more Council members-elect participate in discussions with incumbent Council members if a quorum of the future Council would be involved. A Council member s regarding an item related to a potential Council decision sent to more than one other Council member may be considered an illegal serial meeting. In a 2001 opinion, the California Attorney General concluded that a majority of the members of the Council may not each other to develop a collective concurrence as to action to be taken by the Council without violating the Brown Act, even if the s are also sent to the secretary, sent to the chairperson of the agency, posted on the website, and each printed is reported at the next public meeting. Brown Act applications are fact intensive, and require a case by case analysis. If any city official is unsure whether a communication or potential communication with other city officials may constitute a meeting, the City Attorney should be consulted immediately. "Action taken" is defined in Government Code Section as follows: Action taken means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. This definition is very broad and includes matters taken up at meetings and away from meetings. Notwithstanding this, the following are not meetings subject to Brown Act requirements: Individual contacts or conversations between a Council member and any other person provided such a person is not used as an intermediary to convey thoughts and decisions on City business to other Council members. Attendance of a majority of the members of the Council at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the Council, provided a majority of 16